— Ming-Sung Kuo, Associate Professor of Law, University of Warwick and Hui-Wen Chen, Research Assistant, University of Warwick
January 4, 2022 is a landmark date for constitutional review in Taiwan. It marks the coming into effect of the new Constitutional Court Procedure Act (CCPA), which was gazetted on January 4, 2019. With the CCPA’s taking effect, Taiwan’s constitutional review and the Justices of the Judicial Yuan – the constitutionally designated body in charge of, inter alia, constitutional interpretation, known as the Taiwan Constitutional Court (TCC) – are entering a new era. To prefigure the coming of this new age of constitutional review in Taiwan, the TCC even announced on December 15, 2021 that an oral hearing would be held on January 17, 2022 – of course in accordance with the new CCPA.
In this contribution, we shine light on the core features of the new CCPA in anticipation of its impact on the relationship between the people and the constitution in Taiwan. To appreciate the procedural changes introduced by CCPA, we first situate this landmark reform on constitutional review in the TCC’s winding path towards Taiwan’s constitutional guardian.
The Three Stages of the Guardian’s Life: A Biosketch of the TCC
Since its inception in China over seven decades ago, Taiwan’s constitutional review has undergone great transformation. Through its bootstrapping rulings (or interpretations), the TCC has transformed itself first as a privy council-like, quasi-judicial organ that were mostly deferential to the political branch into the current reliable guardian of Taiwan’s constitutional democracy. Yet, such transformation does not come to pass in one fell swoop but rather takes place in stages. The first stage of Taiwan’s constitutional review began in 1948 when the TCC was inaugurated in Nanjing, China and lasted until the early 1990s. During this long first stage, the TCC did not so much guard the Constitution against political encroachments as provided convenient constitutional covers for political maneuvers when the authoritarian regime calls thereupon. Call it constitutional review 1.0.
Paralleling Taiwan’s process of democratization, constitutional review 1.0 then gave way to constitutional review 2.0 in the early 1990s. Scholars have attributed the move from constitutional review 1.0 to constitutional review 2.0 mainly to landmark interpretations rendered by the TCC on the separation of powers and fundamental rights (eg, Ginsburg 2003; Chang 2015; Yeh 2016; Kuo 2016). In terms of procedure and organization, the TCC has seen little change in the transition. Only with the constitutional provision for the adjudication on anti-constitutionalist parties in the 1992 constitutional amendment (Additional Article 5) was the optional oral argument – along with other procedural changes – introduced in 1993 under the Constitutional Court Interpretation Act (CCIA) – which not only amended but also renamed the 1958 Council of Grand Justices Act.
Since the early 1990s, the TCC has played an integral part in Taiwan’s transition from an authoritarian regime to a full-fledged constitutional democracy and therefore has won public trust. Yet, the TCC’s practice in, inter alia, constitutional review in this stage has essentially continued with the privy-council like practice in constitutional review 1.0, despite the 1993 legislative change. In constitutional review 2.0, the TCC’s body – trapped in unreformed, outdated procedures and organization – and mind – oriented towards reform – are disconnected. The 2019 procedural reform as set out in the new CCPA suggests the beginning of another stage in Taiwan’s embrace of constitutional review.
In contrast to the 1993 procedural tweaks under CCIA, three features of the 2019 procedural reform suggest that the move from CCIA to CCPA is not only another exercise of institutional rebranding but also institutes potential fundamental changes on the procedural and organizational rules governing constitutional review, prefiguring the arrival of constitutional review 3.0 in Taiwan. It is CCPA’s core features to which we now turn.
Judicialization of the TCC Proceedings: Transparency and Citizen Participation
The first feature of the new CCPA is to emphasize the TCC’s role in the protection of individual rights through the judicialization of constitutional interpretation proceedings. Under the old CCIA, the TCC exercises jurisdiction over constitutional interpretation mainly in the form of abstract review. As a result, the TCC does not have jurisdiction to adjudicate on the constitutionality of the rulings of the courts of last resort. The TCC has thus been criticized for falling short in the protection of individual rights. Apart from systematically reorganizing its current jurisdiction of constitutional interpretation into five types (Chapters III-VII), including constitutional review sensu stricto (Normenkontrolle) in Chapter III, disputes between constitutional organs (Organstreit) in Chapter IV, and the dissolution of unconstitutional political parties (Parteiverbotsverfahren) in Chapter VI, the new CCPA draws on the experience of the German Federal Constitutional Court (GFCC) and places greater emphasis on constitutional rights in constitutional review with the introduction of “constitutional complaints (Verfassungsbeschwerde)” under Chapter III (Articles 59-64). Paralleling the focus on the protection of individual rights is the emphasis on procedural transparency. Over the past seven decades, the Justices sat as the Council of Grand Justices and made decisions collegially. The new CCPA aims at moving the privy council-like TCC closer to a full-fledged constitutional court. Although public hearings may not take place frequently, they will no longer be a ritualistic constitutional theater and will be equipped with more procedural safeguards (Articles 25-29). The TCC is also expected to be more accessible to citizen participation through procedural reform, including the adoption of amicus curiae briefs (Article 20).
Removal of the Super Majority Requirement
Second, efficiency should be expected of the reformed TCC as envisaged by the new CCPA. Among the criticisms levelled at the TCC have been the slow pacing of its decision making and the obscurity of its rulings. Under the 1993 CCIA, to render a general interpretation of constitutional principles or to decide on the constitutionality of statutes requires a two-thirds majority of the attending Justices with a quorum of two-thirds of the total membership. Moreover, the TCC’s interpretations have been rendered impersonal, representing the collective opinion. Even each sentence in the holding of a constitutional interpretation requires the agreement of at least two-thirds of the attending Justices. To reach an agreement, the Justices thus tend to choose general and abstract wording to accommodate differing individual opinions. To rectify the slow pacing and obscurity of the TCC, the new CCPA lowers the voting threshold for constitutional interpretation (Articles 30-32). With the removal of the supermajority requirement, the slow-paced TCC is expected to improve its productivity. Moreover, to rid the TCC of obscurity, the new CCPA introduces a reform in the style of judicial opinions – the third feature of the 2019 reform.
Personalization of Judicial Opinions
Departing from the current continental style of impersonal judicial opinions of which the GFCC is the exemplar, the new CCPA introduces the Anglo-American practice: judicial opinions will be authored by individual Justices, while the single-authored opinion that is joined by most Justices will become the opinion of the court (Article 33, paragraph 2). Once this new judicial style is adopted, the TCC’s rulings will no longer be rendered impersonal, with the current collective voice replaced by majority opinions. From the signatures attached to the opinion of the court, observers of the TCC will then be able to pin down the author and the majority in each judgment. In this way, the TCC is expected to become even more transparent to the public. The “personalization” turn is expected to move the TCC further in the existing plurivocal direction propelled by frequent concurring and dissenting opinions. (Kuo and Chen 2017)
Gazing into the Future
Notably, all the three features suggest that the TCC can be more effective in the protection of individual rights and be brought closer to the people under the new procedural reform. It is too early to tell the exact change that the new CCPA will entail to constitutional review in Taiwan since not all the procedural reforms outlined above are mandatory. For example, whether to hold public hearings will remain at the TCC’s discretion. Also, as the TCC’s decades-long practice cannot be simply set aside by legislation, its institutional memory and past conventions of constitutional review may continue to influence its interpretation of CCPA.
Yet, a more fundamental question facing the TCC in the new third stage of its life is what changes the new CCPA is intended to bring about, with respect to constitutional review. As noted above, the TCC has won itself reputation of the reliable guardian of constitutional democracy in civil society with its interpretations in constitutional review 2.0. So it will not win itself extra credit by continuing in this direction. But whether it can continue to move in this perceived progressive direction is not guaranteed, even with the introduction of constitutional complaints. Instead, two consequences of this new jurisdiction can be anticipated and they shine some light on the aforementioned fundamental question.
First, the TCC’s caseload will increase. It is worth noting that the new CCPA introduces constitutional complaints without embracing chamber decision concerning merit in German constitutional review (see GFCC Act § 93c), which is instrumental to the GFCC’s management of its enormous caseload. This selective reception of constitutional complaints procedures in the CCPA reform may risk overburdening the TCC, thereby deepening the conventional wisdom about slow justice in constitutional review. Whether constitutional complaints will aggravate the TCC’s slow-paced decision making or enhance the TCC’s public image as the protector of fundamental rights should be closely watched.
Related to CCPA’s provision for constitutional complaints is the second consequence that we should anticipate from the latest procedural reform. As suggested above, the introduction of constitutional complaints suggests more constitutional petitions coming before the TCC. Yet, the increase of cases will not only pose challenge to the efficiency of constitutional review but it will also challenge the TCC’s role in the protection of fundamental rights. To put it simply, the more constitutional petitions are brought to the TCC, the more likely the TCC are to be faced with divisive social issues. If this is correct, the TCC can no longer pin its hope for continuing public trust on constantly moving in the perceived progressive direction in fundamental rights. Only time will tell whether the procedural reform concerning transparency and citizen participation can keep the public’s trust in constitutional review when the TCC is faced with more and more divisive issues.
[Authors’ note: part of this contribution draws upon Tzu-Yi Lin, Ming-Sung Kuo, and Hui-Wen Chen. “Seventy Years On: The Taiwan Constitutional Court and Judicial Activism in a Changing Constitutional Landscape.” Hong Kong Law Journal 48, no. 3 (2018): 995-1027.]
Suggested citation: Ming-Sung Kuo and Hui-Wen Chen, Constitutional Review 3.0 in Taiwan: A Very Short Introduction of Taiwan’s New Constitutional Court Procedure Act, Int’l J. Const. L. Blog, Jan. 7, 2022, at: http://www.iconnectblog.com/2022/01/constitutional-review-3-0-in-taiwan-a-very-short-introduction-of-taiwans-new-constitutional-court-procedure-act/
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